Venezuela’s re­fusal to par­tic­i­pate at the ICJ

Stabroek News Sunday - - LETTERS -

The For­eign Min­istry could hardly have been sur­prised when on Mon­day, June 18, Venezuela made it known that it did not in­tend to par­tic­i­pate in pro­ceed­ings brought by Guyana in the In­ter­na­tional Court of Jus­tice with re­gard to Cara­cas’s claim that the 1899 set­tle­ment of the bor­der be­tween the two coun­tries was null and void.

State­ments em­a­nat­ing from Mi­raflo­res from the time then United Na­tions Sec­re­tary Gen­eral Ban Ki-moon first rec­om­mended that the mat­ter should be re­ferred to the ICJ if, af­ter a year the Good Of­fices process pro­duced no re­sults, and then when his suc­ces­sor An­to­nio Guter­res acted on that rec­om­men­da­tion, had elicited dis­tinctly ad­verse re­sponses from our western neigh­bour.

As we re­ported last week, the Venezue­lan For­eign Min­istry in its com­mu­niqué con­cern­ing its let­ter to the court, said that the ac­tion had been uni­lat­er­ally filed by Guyana “with­out Venezuela’s con­sent”. It went on to say that its de­ci­sion was con­sis­tent with its his­tor­i­cal po­si­tion of not rec­og­niz­ing the ju­ris­dic­tion of the in­ter­na­tional body, par­tic­u­larly as it re­lates to the bor­der con­tro­versy. It might be men­tioned that Cara­cas has re­frained from sub­mit­ting mat­ters in which it is in­volved to mul­ti­lat­eral in­sti­tu­tions in gen­eral for res­o­lu­tion; it has al­ways favoured bi­lat­eral agree­ments.

It might be added that this ap­plies as well to the UN Con­ven­tion on the Law of the Sea, which Venezuela has de­clined to sign, pre­fer­ring in­stead sep­a­rate ne­go­ti­a­tions with the var­i­ous is­lands of the Caribbean. One of these is a mar­itime treaty con­cluded with Trinidad and Tobago in 1990.

That said, the peo­ple of Guyana have been as­sured both by For­eign Min­is­ter Carl Greenidge, and prior to that by Sir Shri­dath Ram­phal that the con­sent of both par­ties is not re­quired for the World Court to make a rul­ing in this case, in ad­di­tion to which the de­ci­sion would be legally bind­ing, whether or not Venezuela par­tic­i­pates in the pro­ceed­ings.

As for the de­ci­sion of the Sec­re­tary Gen­eral to re­fer the con­tro­versy in the first in­stance to The Hague, there is noth­ing in the Geneva Agree­ment which re­quires him to ob­tain the con­sent of the two sides. For its part, Venezuela’s wish is again to of­fer bi­lat­eral ne­go­ti­a­tions, “… to reach a set­tle­ment which may be prac­ti­cal and sat­is­fac­tory for both par­ties as in­tended by the 1966 Geneva Agree­ment.”

It is per­haps worth re­peat­ing that this is not about the ac­tual bound­ary which di­vides Guyana and Venezuela; it is about the fact that our neigh­bour to the west has caused a con­tro­versy by claim­ing that the set­tle­ment of that bound­ary was the con­se­quence of a po­lit­i­cal “deal” at the time an ar­bi­tral tri­bunal de­ter­mined it in 1899. That the de­ci­sion was a cor­rupt one is com­plete non­sense, of course. Venezuela agreed with the bor­der for many decades, tak­ing part in mark­ing it on the ground be­tween 1901 and 1905, and join­ing with Brazil and Bri­tain (Bri­tish Guiana) to agree to and mark the tri­junc­tion point on Mt. Ro­raima in 1932.

The Venezue­lan claims were first raised in the United Na­tions in 1962, in cir­cum­stances where Guyana was on the verge of gain­ing in­de­pen­dence, and in an at­mos­phere where cold war con­sid­er­a­tions trumped all oth­ers. The Venezue­lans hitched their claims on the very ten­u­ous ac­counts of a lawyer, who had been a ju­nior coun­sel on the le­gal team rep­re­sent­ing Venezuela in 1899. At the time of mak­ing them, he was the only one still alive who had been in­volved in the tri­bunal. Fur­ther­more, he did not make them pub­lic when he was still liv­ing ei­ther; they were left with his law part­ner to do as he sought fit af­ter he died, and it was the part­ner who pub­lished them. Mr. Mal­let-Prevost – for that was his name – was safely be­yond earthly in­ter­ro­ga­tion by that time, and while the Venezue­lans have founded their claims on his sto­ries, they have never put up any co­gent de­fence of his strange as­ser­tions.

To cut a long story short, with Venezuela not re­treat­ing from its avowals where our ter­ri­tory was con­cerned, Bri­tain con­vened a meet­ing in Geneva in­volv­ing Venezuela and Bri­tish Guiana, the lat­ter of whom was to be­come a full sig­na­tory on In­de­pen­dence. Bri­tain seem­ingly wanted to com­mit Venezuela to some­thing which would avoid an in­va­sion by that coun­try and seizure of ter­ri­tory. What even­tu­ated was the Geneva Agree­ment – an in­ter­na­tional treaty. Ar­ti­cle 1, for ex­am­ple, states: “A Mixed Com­mis­sion shall be es­tab­lished with the task of seek­ing sat­is­fac­tory so­lu­tions for the prac­ti­cal set­tle­ment of the con­tro­versy be­tween Venezuela and the United King­dom which has arisen as the re­sult of the Venezue­lan con­tention that the Ar­bi­tral Award of 1899 about the fron­tier be­tween Bri­tish Guiana and Venezuela is null and void.”

There is noth­ing there about the sub­stan­tive fron­tier, sim­ply about our western neigh­bour’s “con­tention” that the award is null and void.

How­ever, Venezuela in­sists on mis­read­ing Geneva, to as­sev­er­ate that the treaty recog­nises Venezuela’s ter­ri­to­rial claim. The Mixed Com­mis­sion, it might be noted, failed, and un­der the pro­vi­sions of the agree­ment, the res­o­lu­tion of the con­tro­versy in its ul­ti­mate stage goes to the Sec­re­tary Gen­eral of the UN, who “shall choose an­other of the means stip­u­lated in Ar­ti­cle 33 of the Char­ter of the United Na­tions, and so on un­til the con­tro­versy has been re­solved or un­til all the means of peace­ful set­tle­ment there con­tem­plated have been ex­hausted.” Here again, as said above, the de­ci­sion about means is sim­ply left in the hands of the Sec­re­tary Gen­eral.

It is not al­to­gether too sur­pris­ing that Cara­cas is not happy with Geneva and makes a habit of mis­in­ter­pret­ing some clear lan­guage, while at the same time in­sist­ing that Venezuela ac­cepts the va­lid­ity of the agree­ment. Bi­lat­eral talks, as pre­vi­ously men­tioned, are that govern­ment’s pre­ferred mode of pro­ce­dure; we had the Good Of­fices process for decades, and it pro­duced no re­sults – but then from Mi­raflo­res’ per­spec­tive it wasn’t sup­posed to. Clearly, this coun­try could not go on in­def­i­nitely be­ing the vic­tim of eco­nomic sab­o­tage, mil­i­tary oc­cu­pa­tion (Ankoko), il­le­git­i­mate de­crees claim­ing Guyana’s waters and a host of other hos­tile acts on the part of Venezuela; and this coun­try’s ap­pli­ca­tion to the World Court holds out hope that this model of re­la­tions will change.

Venezuela, of course, is go­ing through some very dif­fi­cult times at the mo­ment, and given too that gen­er­a­tions of its peo­ple have been brought up to be­lieve they have some in­alien­able right to land nei­ther they nor their fore­fa­thers ever lived in or worked, it is per­haps not sur­pris­ing that the govern­ment in Cara­cas is not overly anx­ious to seek a rul­ing at the ICJ.

Pres­i­dent Maduro has told the Venezue­lan peo­ple that they will con­tinue to de­fend the “sov­er­eign rights” over Esse­quibo, and one can only hope that if the World Court does take the case, Mi­raflo­res will do all it can to per­suade the pop­u­la­tion to ac­cept the re­sult.

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